There are any number of reasons why this is a bad decision. But the biggest is that what we see here is unelected judges making new law.

This is, of course, a gut punch to marriage at a time when marriage is especially vulnerable.

What is happening now, I think, is that children are maturing earlier due to a number of things, including a greater access to information. Normally, society would adjust to this by pushing the age of marriage down. What seems to preventing that stabilization today is that the idea of ‘adolescence’ and keeping young adults away from adult responsibility has been made possible through the state school system. Today’s kids are ready for sex earlier, and are having it earlier. What they do not have is access social institution that provides for this.

Society, however, will eventually readjust to put marriage back in its proper place — marriage is a basic social pattern among human beings that will outlast the institutions arrayed against it.

In a more perfect world, there would be fewer typos as well: “What they do not have is access to a social institution that provides for this.”

From the snippets of it I have read in news reports, the Massachusetts decision adopts wholesale a fallacy that homosexualists now advocate - with great success among the elite, if not among sane people. Homosexualists claim that limiting marriage to the union of one man and one woman excludes homosexuals from the benefits marriage confers. This is of course untrue. Marriage is legally available to any legally competent person. Homosexuals are free to marry. It may be that they marry under false pretenses, while indulging their homosexual urges elsewhere. It may be that they overcome their homosexual attractions and marry honestly.

Either way, marriage is legally as available to homosexuals as it is to sexually normal people, subject to their ability to find a willing partner of the opposite sex. That may be difficult for homosexuals, but it can be pretty hard for normal men and women, too. The commonwealth’s acknowledgement of marriage and conferral of benefits on married people is a support of the essential institution of any society, and a discrimination only against people who choose not to marry. HRS

I believe this decision will elevate the matter of judicial appointments and the question of the kind of judges we are to have and their proper role to the highest levels of public concern. In the public mind, Sen. Kennedy = Massachusetts = Democrat Party = Gay Marriage Imposed by Judges. The consequences for the democrats in 2004 may be severe.

Is the Constitution designed to give rights to the citizens or to give rights to the government? It seems to me that if the state has no compelling reason to prohibit something (gay marriage for example), it has no business to stop it.

As for the “unelected” comment, get yourself educated on the Constitution. The judicial branch is part of the balance of power. This is to prevent, specifically, your desire to dictate according to religious beliefs. The Constitution is an Enlightenment document that was designed specifically to NOT be a theocracy.

One more thing. The divorce rate is 50%. In what way is this caused by homosexuals? If the institution of marriage is in trouble, it is a heterosexual problem.

“It seems to me that if the state has no compelling reason to prohibit something (gay marriage for example), it has no business to stop it.”

This is an ignorant statement. Marriage in its essence is a public institution defined and sanctioned and formed and enforced by the laws of the state. The commenter is simultaneously claiming the state-sanctioned status of marriage for a certain class of couples, while denying that the state has anything to do with marriage. In the name of libertarianism, he’s demanding the supports and privileges of a state-defined institution.

It’s the classic liberal confusion. They demand some good that is provided by society, while attacking the social and moral order that created that good. A variation of this is: They take for granted the goods of society, and have complete contempt for the process by which those goods were created, while demanding that those goods be distributed equally.

Liberals are spiritual parasites. The only thing that allows them to continue is that the society itself is so liberal that it fails to slap them down, but instead legitimizes their parasitism. In turn, the only thing that prevents the parasitism from completely destroying the society is that the liberal order keeps making enough unprincipled exceptions from its own liberalism. But as more and more of the unprincipled exceptions are attacked in turn and cast aside, the society heads toward the abyss.

As for Thucydides’ comment, an article at NR makes the discouraging point that if the Democratic party stands against the amendment, it will be very hard to pass it. But, as T. points out, that could lead to a catastrophe for the Dems.

It is hard to say whether a concerted push for a constitutional amendment depriving the states of the power to define marriage as anything other than the sacramental or judicial union of one man and one woman would succeed. We conservatives like to think that there is a reservoir of traditional common sense in people, and that American voters would punish any party libertine enough to oppose such an amendment.

I fear we may be wrong about that. Think of all that liberalism has foisted on us: unrestricted abortion, confiscatory taxation, mass incompatible immigration, official preference for racial and ethnic minorities (often aliens) at the expense of the far more numerous majority, the destruction of education. The Democratic Party supports all of this, while the Republican Party does little to oppose it. In 2000 the Democrats’ presidential candidate won the votes of more Americans (assuming, arguendo and erroneously, that all those voters were Americans) than did the the Republicans’.

Thanks to liberalism and the Hegelian mambo that destroys mainstream conservatism, Americans have accepted all these enormities and have not reduced the Democratic Party to irrelevance. I would not bet that Democratic opposition to a marriage amendment, euphemized as inclusiveness and compassion, would cost that party much. People who have swallowed abortion on demand, which is premeditated homicide, are not going to choke on homosexual “marriage.”

Thucydides’ comment about the latest Senator Kennedy made me think of a few television documentaries my wife and I have watched recently. As the 40th anniversary of President Kennedy’s assassination nears, there has been a spate of documentaries about his term, his wife and other Kennedy topics. I am no fan of any Kennedy, but they have been interesting to watch. The period film is a stark reminder of how utterly the United States has been transformed since 1963. Also sobering is seeing film of John, Robert and Edward Kennedy all together and realizing that longevity and Massachusetts voters have made Ted, worst of a bad lot, a far more influential man than Jack and Bobby combined. He has had a fleshy hand in most of what has made the America of 2003 unrecognizable to an American of 1963 (not that Jack and Bobby don’t have plenty to answer for). HRS

Is marriage a public institution? Is it properly considered an institution at all? I would say rather that it is a basic social structure that has always existed before there were laws, states, or governments. It has always, however, involved a relationship BETWEEN MEN AND WOMEN - whether that relationship is monogamous or polygamous. Only a very sick society obsessively denying reality can pretend that a relationship between people of the same sex is “marriage,” and use the force of the state to enforce its pretence on the world. From an anthropological point of view even the brother-sister marriages in dynastic incest like that of ancient Egypt are more defensible than this — though, not incidentally, such obscenities were correlated with the power of despotic states.

Without organized society, men and women will get together, create babies and even co-habit. But only in an organized society is there marriage, which formalizes the relationship of a man and woman, establishes their mutual rights and obligations, their obligations to their children, and so on. So marriage in its very essence is a _public_ institution. It consists of a man and woman standing in a _public_ setting, whether in a church or before a magistrate, and saying certain words and entering into certain commitments that make them married before the eyes of the community, a marriage which from that moment forms them as a _family_, as part of a nexus with other families and as a matrix of future families. That’s why, obviously, marriage is different from a man and woman simply hanging out together and sleeping together.

It is a truism that marriage is the central institution of society, the nucleus from which all other relationships and institutions branch out. I guess Mr. Levine takes this primary fact of marriage (i.e., that it precedes so many other institutions), as meaning that it is not an institution but an underying social structure. But that would imply that marriage could exist without society or prior to society. And I don’t think that’s true. Marriage is the formal, permanent relationship of a man and woman as formally recognized by society.

To put it another way, marriage is more than a man and woman living together. It is the man and woman living together plus the institution of marriage. The institution of marriage is _transcendent_ to the particular man and the particular woman, it forms a larger whole in which they participate, and which forms them as a couple and a family. But they themselves are not capable of creating that larger whole. It comes from society (as well as from the natural and divine order of which society itself is an expression).

I’m afraid I have to agree with Mr. Sutherland on this - even though part of me doesn’t want to. The rot of moral relativism runs deep even here in the middle part of the country. The direct attack on marriage by the homosexualist lobby is merely one prong of the overall attack on marriage. The other prongs - a hellish mix of feminists and a divorce industry run by lawyers and judges - has actually been far more destructive in the grand scheme of things. SixFootPole has pointed out that the divorce rate is 50% - a figure that has been more or less constant for 20 years. The sad truth is that by buying into the endless river of lies generated by the sexual revolution, feminism and popular culture, middle class white Americans - especially the women - have largely gutted and destroyed marriage as a viable institution. Ultimately, as can now be seen in Europe, this leads to plummeting birth rates and cultural death.

Like Alaric’s Visigoth horde facing Honorius’ Rome, the homosexualist lobby is facing a hollowed-out shell with very few real defenders left. I seriously doubt that the Democrats will pay politically in any significant way overall. The general populace is much too absorbed with bread and circuses to pay any attention. If it becomes apparent that the homosexualist lobby is going to win politically, I wonder what our next move will be. The HL won’t be statisfied with government approval, of course. Their next target will be to use state power to coerce churches - especially the Catholics and other more traditional churches - into sanctioning their perverted unions - all in the name of “tolerance”, naturally. If you have any doubts about this, just look at the ongoing campaign to destroy the Boy Scouts despite a Supreme Court decision affirmiing freedm of association.

What Mr. Sutherland and Carl say may, God forbid, turn out to be correct, but I wonder if we should be acting like spectators making bets on the outcome of an election or a sports event rather than as participants in the struggle? This issue is existential. If homosexual marriage goes through, the society will be so radically transformed that it’s not possible to conceive of what such a society would be like. It is defeatist and unhelpful to make this a matter of gloomy scenarios of what might take place. This battle has to be fought to the death, not treated as material for punditry and predictions.

You may remember how strongly I criticized Ramesh Ponnuru for his defeatist article about homosexual marriage a few months back.

It has to be fought to the death, but it is important to recognize that this is the last stand on the last hill. Without the intent to reclaim the other lost ground - no-fault divorce, contraception, etc - there is no point in fighting at all. This day was inevitable at the time Americans failed to reject and roll back _Griswold vs. Connecticut_.

Grass-roots America may be correctly frightened of the implications of homosexual “marriage”; but are they frightened enough to give up their easy divorces, their marriages considered complete without children, their bastard children lionized rather than stigmatized, and the nationally legalized Pill? I doubt it; and they all go together inexorably.

I agree with Matt, as I wrote here:

SODOMY RULING SHOWS THE ONLY ALTERNATIVE TO MORAL ANARCHY IS A RETURN TO TRADITION

http://www.amnation.com/vfr/archives/001559.html

I didn’t mean to give the impression the we should give up fighting, sit back and watch while the visigoths storm the city and burn it to the ground. We should by no means give up - ever! Matt is basically correct about this being the last hill (or at least one of the very last hills).

GWB has already tacitly capitulated on the issue. When the Lawrence decision was first announced, several Republicans starting agitating for a constitutional amendment to protect traditional marriage. Bush’s response was that he didn’t think such an amendment was needed, which pretty much defused the movement. Even a casual observer of the leftists inhabiting the judiciary can see that an amendment is the only thing offering even a shred of protection against their endless machiniations. It’s so typical of Bush - as with affirmative action, he makes a couple of tough-sounding statements to pacify the religious conservatives in the Republican camp and quietly slips the knife into their back at the same time. Ditto for partial birth abortion. The Republicans pass a law that has already been delcared unconstitutional by the supreme court, but do absolutely nothing to clean up the judicial cesspool - one of the few things that could conceivably count in terms of slowing down the leftist juggernaut.

While fighting this tooth and nail, we need to also think how we can survive to fight another day if this re-definition of marriage goes through. Unless our prayers are answered in a major move of repentence among the white middle class, there’s not much hope of actually winning this battle here in the short term. Perhaps those of us who believe in traditionalism need to emulate the Jews, who managed to survive as a minority despite periods of overt persecution. If, as Mr. Sutherland and I suspect, the majority has embraced the toxic faith of liberalism, we need to learn to survive as dissidents against the majority.

I would echo Mr. Sutherland’s comment on the JFK documentaries that are playing on TV this week. The films are a good time capsule of what America looked like in 1963. Relevant to this thread, I have a friend who is a former Bostonian. Through his professional life there, he knew most of the top political and media personalities in Massachussets. He had a slight aquaintance with John and Robert Kennedy, and was friends with a crony of Joseph P. Kennedy.

Once I asked him what John and Robert Kennedy would have thought of Ted’s “Gay Rights” position. He answered, “He didn’t get that from his father or his brothers.” A few of RFK’s biographers have admitted that Bobby had little use for homosexuals. It’s true that JFK and RFK never realized were things would go. This is how liberalism has worked. The bars keep falling the way the compartments kept filling on the Titanic.

”When a Jew is attacked in France, it is an attack on the whole of France,” Chirac told reporters.

Yet, when a country is being transformed by immigration, the opponents of the change are the enemies of the nation.

By the way, would Chirac say the same thing about an attack on a supporter of Le Pen?

O tempora, o mores.

David wrote:
“It’s true that JFK and RFK never realized were things would go. This is how liberalism has worked.”

This is an important, perhaps even the most imporant, aspect of understanding liberalism. A liberal is someone who has a strong alliegence to liberalism (where liberalism is defined as government with the primary purpose of insuring/enforcing equal freedom). A liberal is not someone who embraces the full implications of liberalism, because the full implications of liberalism include the complete destruction of society. In most cases - perhaps Jacques Derrida is an exception - if the person understood the full implications of his liberalism (and if he understood _that_ they are implications of his liberalism) he would apostasize and no longer be a liberal. Liberalism lives on in the vast majority of ordinary people (rather than only in a few sociopaths like Derrida) because of the unprincipled exception; and, critically, because the liberal is convinced himself that his exceptions are not unprincipled.

Re my comment of Nov 18, 5:41 p.m. on the public nature of marriage, even the Massachusetts court insists on that point. (The decision also acknowledges that marriage has always been defined under the law as a man and a woman, it just says that such understandings and such laws violate the Mass. constitutional guarantees of equality):

“We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution…. In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) (“Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise”) …

More untruth from the Massachusetts court. To get away with promulgating the bizarre notion that the liaisons of homosexuals can be marriages, the court must arrogate to itself the right to say what marriage is. Because the court is supposed to confine itself to saying what the law is, claiming that marriage is merely a legal creation of the Commonwealth of Massachusetts provides a fig-leaf behind which the judges can hide their usurpation and judicial legislation of a new definition. The judges fudge a bit by speaking of “civil marriage” to avoid looking deeper, at marriage’s true foundations.

The truth, of course, is that marriage is at its foundation a social and religious, not legal or political, institution. It has never been a “wholly secular institution,” certainly not in Christian societies. The law recognizes marriage, and the state protects it, as an exercise of the state’s police power to protect the social order. I suspect the Puritan Englishmen who sailed to Massachusetts Bay would have been very surprised to learn that none of them were married until the Massachusetts Bay Colony “created” marriage! They would have been just as surprised to learn that their marriages had no religious, Christian component.

As Justice Scalia predicted, a state court has walked through the door the federal Supreme Court opened in Lawrence v. Texas. It says much about the intellectual standard of legal comment today that a whopper like the one Mr. Auster quotes above goes unchallenged by establishment legal commentators. HRS

To Mr. Sutherland, there are confusing cross currents here. I had intended my quote of the Mass. court to back up the idea that marriage is a public institution and a legal status, not a merely private agreement. But the quote was not selected well to advance that idea, because the Mass. court conflated the public aspect of marriage with the supposed secular aspect of marriage. I regret the confusion.

It is actually a good quote to show the mendacious modus operandi of Leftist judge-legislators. They pretend to acknowledge a “traditional” understanding, that of marriage as more than a merely private institution. But they twist the acknowledgment to reduce marriage to a legal creation of government and something they are therefore free to tinker with. They are using a statement that sounds somewhat in line with traditional understanding to tee up a profoundly untraditional misinterpretation of what Massachusett’s constitution requires with respect to equal protection under the law.

It is another example of the sort of waltz-around-the-law casuistry used to impose social policy mandates that the law does not require (and may expressly forbid) that the U.S. Supreme Court has been perfecting at least since Justice Douglas joined the Court in the 1930s. Lawrence v. Texas, which clearly inspired - if that’s the right word - the Massachusetts court, is a fine example of the genre. HRS

Another comment about the MO of activist judges: the Massachusetts court cites the DeMatteo case in support of its assertion that marriage is a wholly secular institution. But look at their citation from DeMatteo (in Mr. Auster’s 11:04 AM comment); that assertion is not supported by the citation, which does not say that marriage is merely a creation of government either. This abuse of precedent is another example of the way judicial legislators distort the law, and expand their own power over the rest of us. There is a reason why a lot of people do not trust lawyers! HRS

I do not believe that President Bush is an ally of us is this fight; rather, he desires to remain uninvolved, while still gaining social-conservative support.

In his State of the Union address, he said that marriage is “one of the most fuddamental, institutions in our civilization”. (Only in our civilization? Marriage is a universal institution and it precedes civilization) He remarked that Congress passed and President Clinton signed the Defense of Marriage Act. Then he uttered these three puzzling sentences: “Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected represenatives. On an issue of such great consequence, the people’s voice must be heard. If judges insist on forcing their arbitrary will uppon the people, the only alternative would be the constitutional process.”

The shift from “judges … have begun redefining marriage” to “If judges insist on forcing” is rather odd considering the Massachusetts Supreme Judicial Court has already altered - of course, undemocratically - the verry meaning of marriage. On reading Bush’s comments on marriage, I noticed that Bush did not say that he believed marriage only rightfully to be between a man and a woman. He neither commented on the nature of marriage nor endorced the Federal Marriage Amendment, seemingly the only thing which can prevent judges from “enforcing their arbitrary will” upon us. He wishes to appease social conservatives while avoiding taking a controversial stand on the issue.

Good analysis by Joshua in catching that shift of emphasis by Bush. If the passage has any definite meaning, it is similar to his previous position, which is that he will (may?) support an amendment if it becomes absolutely necessary.

In practical terms the following scenario seems to be suggested: If the Massachusetts legislature institutes homosexual “marriage,” and if a homosexual couple gets “married” in Massachusetts and tries to get the marriage recognized in another state and is refused on the basis of the Defense of Marriage Act, and if they take their case to the Supreme Court which overthrows the DOM Act, which means that homosexual marriages start to take place all over the country, well, at that point George W. will (may?) come out and say he supports a constitutional amendment to protect marriage. But by then it would be rather late, wouldn’t it?

If the social conservative leaders are satisfied with this weasely position by the president, they’re fools.

I noticed while listening to the speech that Bush refrained from endorcing the FMA, but it was Rod Derher’s post at NRO’s “The Corner” that brought Bush’s odd use of the subjuctive mood (“if judges insist upon enforcing their arbitrary will”) to my attention. One wants to yell: “Bush, it has alread occured!”

From the speech, Bush seems to have no problem with the judiciary of a particular state dictating a redifinition of marriage; he only opposes the Federal Judiciary’s nationalization of an activist state court’s ruling for “gay marriage.” I agree with Mr. Auster that Bush does not want to engage in any effort (and the FMA is seemingly the only effectual one) that would prevent such a nationalization; rather, he seeks to communicate a concern about the issue and a vague possibility of doing something in the future in response to a ruling nationalizing “gay marriage” to social conservatives.

Thanks to Joshua for the further clarification. The first of the three Bush sentences could be seen as referring to the Massachusetts court which has already “begun redefining marriage by court order.” The third, conditional Bush sentence, “If judges insist on forcing their arbitrary will upon the people, etc.,” could be seen as referring to the possibility of the U.S. Supreme Court overthrowing the DOM Act, in which case Bush suggests he may support the FMA. Scanning it this way, there’s no contradiction.

The chief problem remains Bush’s wishy-washy, wait-and-see attitude. The FMA is vitally important and must be pushed now.

I didn’t realize that there was a link between our current most important issue, immigration, and the gay “marriage” controversy, but there is. Chief Justice Margaret Marshall of the Supreme Judicial Court of Massachusetts is … an immigrant. Marshall, authoress of the majority opinion inventing a right to “marry” someone of one’s own sex, is a white South African. A student agitator at home (where she no doubt agitated for an end to white rule, the consequences of which she did not stick around to experience), she later came up here. Not surprisingly given her judicial propensities, her world view was perfected at Harvard and Yale. She moved to Massachusetts’ high court from being VP and General Counsel of Harvard. The governors who appointed her to the court and promoted her to chief justice were both Republicans.

Another example, I suppose, of how immigrants enrich America. HRS